tv The Journal Editorial Report FOX News March 31, 2012 8:00pm-8:30pm PDT
endorsing mitt romney. i am harris faulkner. i am see you for a news hour right in the middle of huckabee that starts in seconds . >> this week on the journal editorial report. the waiting ends as the supreme court justices decide the fate of obamacare, all the highlights from the oral argument and plus, the political implications, the individual mandate falls and what it would mean for america's health care system and all of that and the phenomenon of the hunger games, it's a box office smash, should your kids be seeing it? welcome to the journal, editorial reportment i am he' paul gigot. after a historical three days of oral argument. the fate of president obama's
signature legislative achievement the patient production and affordable care act is now in the hands of the nine supreme court justices. a look at the highs and lows of the proceedings. wall street columnist, dan henninger, joe, and opinion.com editor james toronto. so, momentous week at the court, fascinating week. before the week, the conventional wisdom, this is an easy call, the law is going to be upheld. at the end of the week, you could almost feel the shift during the course of the week and at the end, even the left was saying, now, there's a very good chance that part or all of this law could go down. >> yeah, and the big news was justice anthony kennedy. justice scalia was comically judicious, look how many times it says laughter in the transcript.
and he's taking serious where the states are the plaintiffs in the case, both the argument that the individual mandate and that you have to buy insurance is unconstitutional, it exceeds congress's legitimate power and the argument that if the individual mandate falls the best remedy is to strike down the entire law. >> paul: let's here the first, on the individual mandate. hear from justice kennedy. >> saying that the federal government has a duty to tell the individual citizen that it must act and that is different from what we have in previous cases. >> well. >> it changes the relationship of the federal government to the individual, in a very fundamental way. >> and the core principle in anthony kennedy's jurisprudence is liberty. that is individual liberty. you've seen it in gay rights cases, but he talks about the separation of powers. if one part of government, the federal government, doesn't get too large or too powerful, you protect individual liberty
with tension between state power and federal power, that's really a central issue in this case, isn't it? >> well, there's no question about it and the government's case denies that it involves any of that sort of thing. which is one of the reasons they were having such difficulty making their argument. and as chief justice roberts pointed out at one point. the federal government has enumerated power, we know what they are and they are limited and the-- the question that they kept putting to the government's lawyers is in what way is this extension of the commerce clause not exceeding those enumerated powers and because they deny that it has anything to do with any sort of extraordinary extension of the commerce clause, he was unable to talk about that subject and i think that's the reason he sort of looked foolish throughout the day's argument. >> paul: you mean the solicitor general. >> the solicitor general was not able to talk to the issue that kennedy was putting to
him. >> paul: but kennedy put forth, that justice kennedy could find a leadership with the young people, to the larger health insurance market. >> right, saying at some point you'll consume health care, therefore, we can mandate, the problem is it isn't a limiting principle. and you say that health care leads to health insurance, all sorts of things lead through health care, you know, whether it's healthy decisions, life choices, so, it's really another way of stating the police powers that-- and the separation-- >> the separation of states. >> the separation of the states and the federal government that's at the core of this jurisprudence. >> how big a hole is there for justice kennedy to walk through if he wants to uphold this mandate? >> not a very big hole, it seems to me. i mean, he would have to define it very narrowly and explain why the health insurance business is different from all other businesses, different so the federal government can order
people to buy something. all right, in prefacing that comment that joe just quoted. kennedy says, well, they say that this market is unique. of course, they'll say that about the next market that comes before us. >> all right, let's take up another issue, which is if the mandate goes down, then, how much of the rest of the law needs to fall and let's listen to justice ginsburg. >> there's a question of whether we say everything you did was no good and now start from scratch or to say, you know, there are many things that have nothing to do, frankly, with the affordable health care and there are some that maybe it's better to let congress to decide whether it wants them in or out. so, why should we say, but the choice between a wrecking operation which is what you are requesting or a salvage job and the more conservative approach would be salvage rather than throwing out
everything. >> dan, a salvage job. that's what she's undertaking here, is she implying that the individual mandate's already gone and trying to save the rest of the law? >> they obviously are trying to save the rest of the law and justice scalia got one of his biggest laugh when he said doesn't the 8th amendment come into play here. >> cruel and unusual punishment because the justices would have to sort through all 2700 pages and say, well, that stays, that goes, that stays, that goes. that would be a big undertaking. >> and it gets to the nature of the law itself. judge vincent said it was not severable. i think that judge vincent may be the only one that read all 7,200 pages, once you do that, you see it's just the most incomprehensible complex piece of legislation and for somebody to, like justice ginsburg to start describing which of these endless parts you're going to save, is kind
after fool's errand. >> the critics of the court if it overturns the law says it's an activist act by the justices, they're really just taking this law and throwing it out in total, but would it be activist or more activist just to overthrow part of it? >> well, see, that's the point. well, if they've struck some parts and not others, they're trading a new law that congress never intended, so, wouldn't it be better, justice scalia argues, to give congress a blank slate. to say, look, you screwed up with this one and this is an important problem and the analogy he drew was to campaign finance law, where in the late 1970's, they threw out some parts of regulations and political speech and now we just have a mish-mash of contradictory rules. >> paul: james. >> judge vincent had the best answer. >> at the appellate court. >> the trial court. >> the best answer to justice
ginsburg versus a wrecking job. effectively designed watch where the designer made a significant error in designing one of the main moving parts. you can't salvage it, you have to throw it out, it's junk. >> still ahead, what happens to america's health insurance markets if the individual mandate is overturned and would it help or hurt president obama in the fall? answer to those questions and more when we come back. we always hear about jobs leaving america. here's a chance to create jobs in america. oil sands projects, like kearl, and the keystone pipeline will provide secure and reliable energy to the united states. over the coming years, projects like these could create more than half a million jobs in the us alone. from the canadian border, through the mid west, to the gulf coast. benefiting hundreds of thousands of families throughout the country. this is just what our economy needs right now.
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all or part of obamacare is overturned. let's talk about that and talk about the health care system first. what happens to this law if the mandate and some of the main regulations are overturned. >> we're just going to have the incredible amount of uncertainty, even more so than we have with the law, as it is now. you're going to kind of have a hole right in the middle of it and i think that congress is going to have to go back one way or the other. and either defer this for a year, two years, maybe longer, and come up with something, that will work without the heart of the law. >> and you still have potentially a lot of it still in place, maybe the states having to put together the exchanges and the subsidies in place. but, no cost control mechanism to control the cost of health care. >> right, no, exactly. you'll have the regime like in six states right now. where they have all kinds of regulations that drive up health costs, but nothing to offset them, so, i think you're going to see major
problems. >> what about the political implications, dan. you buy harry reid's arguments and james carville's argument the democratic consul tonight that this will help democrats. >> i don't see this at all. something they've been trying to do for 70 years. >> only 70? >> yeah. >> it was, i mean, talked about during the depression and the roosevelt years and this is the crown jewel of president obama's, excuse me, first term. and for the supreme court to overturn it, i think is a significant blow to the democratic idea and sure, they'll try to demonize the supreme court, what else are they going to do and out there among average voters, it's going to suppress the president's support. >> but you have a lot of republicans, even this week who are fretting, oh, my gosh, we'll lose our best issue, if this is dehe feeted. i mean, steven king, and our colleague wrote about the iowa congressman saying oh, man, this would be bad. does that make any sense? >> well, it makes sense if you
think about how it's bad for obama if the law is upheld because that means he has to run on this widely hated law that is going to have terrible-- >> if you're like dan, like dan and you think as i do, that this is, they want this because they really want the government to run health care. and this is the culmination of the social welfare. >> right, that's a policy argument and this is an argument about the short-term political effect. all right, it doesn't really make sense to say, it's going to help obama to have his signature initiative deemed unconstitutional. it's hard to see how it helps obama either way. and so, the answer is, really, what happened was, this law that was passed two years ago was a political disaster for obama and either way he's going to pay the price for it in november. >> dan, what about the court when it thinks about it, particularly chief justice john roberts, when he thinks about the reputation of the court, he must know if this is a 5-4 decision that the left and maybe even the president himself is really going to go after the supreme court and
say, fundamentally, this was a political judgment and another bush v gore. >> yeah. >> do you think that would give the justices pause to say, you know what? whatever we think about the, the constitutional arguments, we've got to think about the reputation of the court and so, we're going to be very cautious here about overturning the law. >> well, i understand that concern, but i think, what we have here, is a division similar to one we've talked about before, which is the partisan division in congress itself. and everyone followed this case and obviously, the case was argued seriously, over the issue of the-- very substantive issues and what we discovered is this court, the courts, are divided over the law, left and right divided over the intent of power vis-a-vis the states and the individual. and this is, they are now so far apart. it's going to be very difficult to bring them together. just as it is difficult now to bring congress together, and
ultimately, i think, this is the sort of thing that has to be resolved in the election booth and in the november election and the american people have to think about which direction they want to go in. >> joe, what do you think is going to happen. >> i think 5-4 decision upholding the law, but right on the edge there, it could go either way. >> paul: james. >> i also think 5-4, but to strike down the mandate and after sitting through the session this week, i think there's a good chance the whole law would be overturned. >> it would be hard to imagine anthony kennedy supporting the mandate after all the criticism, articulate criticism he made in those hearings. >> paul: this is bigger than one president or one election, or even one law, this is about the structure of the american government and liberty and i hope the justices take it that way and ignore all of the outside politics. when we come back, it's a box office phenomenon, setting office phenomenon, setting recordsave two car insurances t we're going to have you taste. the first one we're going to call x. go ahead and take a sip, and then let me know what the baby thinks of it. four million drivers switched to this car insurance last year.
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>> well, it's a box office smash. taking in millions last weekend. is hunger games appropriate for kids. based on the first book in the young adult trilogy by sues ann collins, in a controversial essay, critics book critic, megan called it hyper violent and lamented what she says as the book industries ever more appalling offerings for adolescent readers. and megan joins me now. and thanks so much for being here. >> nice to be here, thanks. >> so you followed the book and now the movie. what is the appeal of this phenomenon to, why are so many young adults, young teenagers seeing this movie? >> it's, well, it's very compelling story, i mean, i think that first of all, we
know that the gladiatorial concept has been interesting to people since before the christian era and now we're in the post christian era and people are still enjoying gad toral contests. we all want to slow down and look at the thing on the highway. and that brings people into it. a transgressive idea children as young as 12, killing each other. fighting to the death in the arena for the pleasure of the adults around them. and i think you can say that there are all sorts of concepts in the book, that are, are less lurid and interesting, and so we can talk about that. >> and one, one of my colleagues here has a 13-year-old son and he allowed him to go to the movie and he said that there were actually some very good traditional moral themes in the movie. and what are those? >> yeah, well, that's right. once you get past the violence and i think maybe starting at the age of 13 and going up and not younger than that i would
say. and you have a really classic and interesting demonstration of the individuals, of noble individual who is motivated by good and honorable instincts, doling with a tyrannical and distorted government that is, that takes concepts like honor, and hope, and twists them in evil ways, and what you have is the in it particular story, you have the president of this corrupt culture is invoking concepts like honor, in an entirely cynical way, part of the way that's depressing the polllation. >> paul: politicians have been known to do that. >> and individuals through their acts of genuine sacrifice and genuine love show in sharp relief that kind of default, as it were the politicians are telling. the individual against the state is a live issue at all times and certainly not, i think your conversation a few minutes ago, has to do with that.
>> paul: you wrote, in your essay for the journal, about how the larger universe of these young adult books do tend to deal with very dark themes these days, dysfunctional families and behavior, even depraved behavior. why -- obviously, the books sell, the publishers wouldn't public them if they didn't. what does it tell us about the larger culture that these themes are so prominent and popular? >> well, they're prominent in a particular sub group. there are young adult books that don't deal with the dark stuff. >> again, going back to the first point, the human creature is drawn to darkness and therefore, if you offer darkness, people will gravitate towards it. >> it's one of the more remarkable features of the way we're designed. in the hunger games and young adult books, there's, a very strong, how do i put it, there's a strong element of the scrutiny under which teenagers find themselves.
and you know, i thought about the hunger games itself, and it's -- it's like helicopter parenting plus facebook, plus twitter. and the cash characters, in order to survive have to get people to like them. an analogy for high school. and what do children pay for these messages, we like to think of childhood as an incident time. relatively, and when i showed my age, the hardee boys and robinson craruso, long ways from it. >> all has a dark side, be robinson caruso. if it takes distance from the reader or a place that's immediate. i would say with the hunger games in particular, the books and movie really are for children on the older end of
the spectrum. >> paul: right. >> a lot of pressure on the parents for the ten-year-old-- in my household there's a ten-year-old there's an outrage when he she's not allowed to see the movie, but it's rather well done for what it is, about it's excellent moral themes and yet it's unbelievable brutal and tough to see, you know, a 12-year-old with a spear sticking out of her. >> paul: thanks so much for being here. >> thanks for having me. >> paul: we have to take one more break. when
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inspired pick. >> paul: not sure how good for jim kim going into that snake pit. >> and miss for beganet, a petition to krl governor walker. and turned out that 25 ganet reporters signed the petition as well and they revealed this in the full transparency and did not disclose the names. reporters. paul, who will watch the watch dogs. >> dan. >> paul: a hit for the people described in recent stories as avoiding the new iphones and clinging to the ancient cell phones like the samsung 707. now, i'm not a techno fobe, i love carrying around 25 books on the e-reader, but minimized by interface and not captured by the world of computer engineers. >> paul: that's slick. w